Public Bill Committee

[Martin Caton in the Chair]
Written evidence to be reported to the House
TPIM 01 Justice
TPIM 02 Newspaper Society
TPIM 03 Equality and Human Rights Commission

The Committee deliberated in private.

Examination of Witnesses

Lord Macdonald of River Glaven, Angus McCullough and Judith Farbey gave evidence.

Martin Caton: Welcome to our sitting. Please will you introduce yourselves to the Committee?

Lord Macdonald:  I am Ken Macdonald.

Judith Farbey:  I am Judith Farbey.

Angus McCullough:  And I am Angus McCullough.

Martin Caton: Lovely brief introductions. Thank you very much.

Q 8888

Julian Huppert: It is a pleasure to serve under your chairmanship, Mr Caton.
I shall start with a general question to all three of you. What are your comments on the legislation and how it compares with what you would like?

Lord Macdonald:  Do you mean the Bill?

Julian Huppert: The proposed legislation we are looking at.

Lord Macdonald:  The significant changes from the old control order regime that are clearest to me are, first, the abolition of relocation—whether you think it was good or bad, it was certainly the most draconian measure under the old regime, and it is gone. Secondly, there is the fact that long curfews—daytime curfews in particular—have gone, which I suppose were the second most draconian aspect of the old legislation. Thirdly, and equally significantly, is the two-year limit on the period of the measure in the absence of fresh evidence. Personally, I would like the whole regime to be tied in to the criminal justice system so that the measures can be applied only when there is a current investigation into an individual. If that were the case, the measures would be akin to, if not exactly the same as, bail conditions, and would be constitutionally unobjectionable. In those circumstances, the measures would no doubt be designed to encourage investigation and the gathering of evidence, rather than impeding it, as I think the old control orders tended to. I think that my successor as Director of Public Prosecutions has tended to agree with that view.

Judith Farbey:  Speaking from the perspective of a special advocate, I feel that the special advocate’s role under the new Bill will be very similar, if not identical, to that under the Prevention of Terrorism Act 2005. We primarily make submissions for the disclosure of secret evidence into the open part of the case. During substantive hearings, we step into the shoes—if I can put it that way—of the controlled person’s barrister when they are turned out of the courtroom because the session is going into secret. I feel very strongly that that role will remain under the new regime and that I will basically carry out my current tasks under that regime although, of course, much is left to the details of rules.

Angus McCullough:  I agree with Judith. From the perspective of a special advocate, the striking thing about this is that it is identical in terms of the closed proceedings and procedure to the control order regime that we have become used to.

Q 89

Julian Huppert: Lord Macdonald, I have tabled amendments that look towards police bail, but I will not ask you about them because you might not have looked at them.
On a broader question to all three of you, the Government argue that there is no provision within the terrorism protection and investigation measure regime that requires derogation from the European convention on human rights, and that the whole Bill would be not only Human Rights Act-compatible, but significantly more so than the control order regime. Do you agree with that and are there any areas in which you have particular reservations, such as article 6?

Judith Farbey:  I feel—Angus and I have put in our written view—that there will be no greater guarantee under the Bill than under the current legislation that the TPIM notice will satisfy article 6 in terms of disclosure to the person affected. Therefore, we may well go through the same sort of exercise under this Bill that we go through with the current administrative court under the existing regime. Clearly, the measures that can be imposed on a person subject to them are different from under the current Bill, but in terms of article 6 in particular, which is really where our expertise as a special advocate lies, I do not think that we are looking at a vista where courts will necessarily spend a lot less time on article 6 arguments.

Lord Macdonald:  I am sure that that is right. I think the sort of litigation that we have seen in recent years is almost bound to continue. Any regime that allows inhibitions on liberty to be enacted in the absence of a conventional trial, as we would understand it, is bound to engage arguments around article 6. I would certainly expect those to continue, and the courts will have to continue to focus on that. I do not think that this Bill will change that at all.

Angus McCullough:  I have a concern that the wording of the Bill runs the risk of introducing language that cannot be applied literally in a wide variety of cases. The House of Lords, in the AF (No. 3) case, has said that the literal language of the 2005 Act cannot be applied because in many cases it leads to a breach of article 6 fair trial rights. Looking at schedule 4 to the Bill, it appears to be envisaged that exactly the same or very similar words are going to be used, which again will not be capable in practice of being interpreted as meaning what they say. That is not a great way of going about passing legislation; it is liable to lead to confusion.
For my part, I would have preferred to have seen an attempt by the draftsmen to recognise the state of the law as it has been declared by the House of Lords in AF (No. 3), with a view to requiring the Secretary of State to acknowledge the article 6 duty at the outset of proceedings, rather than simply leaving it for the court and the special advocate to address some way down the line. In practice, what has happened in control order proceedings is that the control order may have been in place for many months—even years—before the final, substantive hearing, or before the disclosure stage is reached. The Secretary of State, when it is put to her—as it has frequently been, and is at the moment—then decides that the public interest in maintaining the control order is not outweighed by the harm to the public interest that would be caused by giving the required disclosure. It is unsatisfactory to my mind that a control order would thereby have been in place for an extended period without it actually being justified through giving the level of disclosure required. Exactly the same would appear to be envisaged under the TPIM regime, although of course we have not seen the underlying rules of procedure yet.

Q 90

Bob Stewart: Special advocates: there is not a big difference, as I understand it, in the way you have to operate. What is your considered opinion with regard to whether the public would be safer under a control order regime or under a TPIM regime?

Angus McCullough:  I would be rather reticent about answering that. I do not think that it really falls within our scope of expertise. You have had other witnesses who are much better qualified and you will be hearing other views after ours. So, for my part, I would respectfully—

Bob Stewart: I understand that.

Lord Macdonald:  I think the public are safest when terrorists are in prison, preferably serving as long a sentence as possible, which is something we achieved with scores of people in recent years—far more successfully than any other fair trial country. We can prosecute people and lock them up on good sound evidence following fair trials.
If we are going to have a regime that controls people, it should be linked as closely as possible into criminal justice, because criminal justice is the long-term answer. If you put someone on a TPIM, they are on it for two years and then they are out—that is it. If you get evidence against them and prosecute them, you can lock them up for 20, 30 or 40 years, and that is what we should be doing. I am strongly opposed to any regime that impedes the ability of police and prosecutors to gather evidence and to lock these people up. If you are going to have controls, make them akin to bail conditions, which encourage the gathering of evidence rather than frustrate it.
I do not have a problem with any measure in the Bill so long as it is allied to a due-process justice system, and as long as no measure operates in a way that impedes the gathering of evidence. If you warehouse people under the control of the security services and away from the prying eyes of the police, you do not get evidence. That is what I think is wrong with the system.

Bob Stewart: I will rest my case.

Q 91

Stephen Phillips: The Bill proposes that TPIM notices will be subject to High Court review in all cases. I would like to ask you two questions in that context, going back to some evidence you gave a moment ago. First, will that reduce the amount of litigation that goes to the courts after, presumably, the High Court has approved the TPIM notices? Secondly, with the High Court review of TPIM notices, is the Bill more compatible with the civil and human rights that one expects, consistent with the criminal justice system?

Judith Farbey:  On the first question, the current control order regime is bipartite. There is first an initial approval, if I could call it that, from a High Court judge and then, secondly, it goes to a substantive hearing. I foresee that those under TPIMs would be as enthusiastic to go forward to a substantive hearing as those under control orders. They will still be subject to intrusive measures, which they will oppose. They will still want and have the right to full judicial scrutiny. Therefore, I would not see any change in that regard. I have stupidly forgotten your second question.

Q 92

Stephen Phillips: As a result of the detailed provision for High Court review, is this proposal, rather than the control order system, more consistent with what we have come to expect for civil liberties and human rights?

Judith Farbey:  Without wanting to be too “lawyerish” about it, it would be impossible to give a blanket answer for all persons. The detailed consideration of a person’s human rights would depend on the facts of his or her case. I see no improvement with regard to article 6, and other articles may well depend on the facts of the particular case.

Q 93

Stephen Phillips: Lord Macdonald, would you like to add anything?

Lord Macdonald:  I agree. I am sure that as many people will be advised to take their cases to review as happens under the present system. I think that that is inevitable. As I said before, I think that the litigation around article 6 will continue—this Bill certainly will not stop it.

Q 94

Gerry Sutcliffe: It is a great pleasure to serve under your chairmanship, Mr Caton. Good afternoon to the witnesses. As Lord Macdonald has said, all members of the Committee want to see prosecutions as a starting point, but there are occasions when that is not possible. The TPIM Bill has been described as “mini control orders”—[Hon. Members: “By you!”]. By me, I know, and by critics of the Bill and the proposals.
The Government’s own counter-terrorism review concluded that there may be exceptional circumstances when it might be necessary for the Government to seek parliamentary approval for additional restrictive measures, such as curfews, further restrictions on communications, associations and movement. Do you see circumstances where the Government might have to do that?

Lord Macdonald:  It happens all the time. Any day of the week, I have a number of clients on police bail, which means that they are subject to restrictions before charge. Sometimes they are on police bail for as long as two years, subject to significant restrictions on the say-so of a police officer, because they are suspected of being involved in crime. No one says that that is unconstitutional, unfair or improper. It is a perfectly principled thing to do, because they are under investigation.
There are clearly occasions when, in the absence of a charge, people have to be put under restriction, which happens across criminal justice, but it has to be as part of a continuing investigation. We have to avoid the situation where people are plonked under restriction away from the prying eyes of criminal justice; they stay there for two years; and then the matter is discharged. That does not protect the public, except perhaps for those two years. It is not in accordance with our normal constitutional principles, and we could easily cure it by tying these sorts of restrictions into continuing investigations.
We could have a system where these measures could be imposed only when the DPP had certified that the evidence justified an investigation, and an investigation took place—sanctioned by a chief constable—continuing these measures, which could be in force for the length of that investigation or for two years, whichever was appropriate. It seems to me that at a stroke, with that system, the constitutional objections would disappear.
If the Home Secretary is certifying that she has reasonable grounds to believe that someone has been or is involved in terrorist activity, it is absolutely absurd that in those circumstances there are not active investigations into those individuals.

Q 95

Gerry Sutcliffe: Are you concerned about the fact that these are serious individuals, who are very dangerous, in that we are at a severe risk threat level at the moment, and we have high-profile events coming up—the Olympics and Paralympics—and some of the people who are subject to control orders at the moment, with relocation, could be back in London?

Lord Macdonald:  I am not arguing that people who are plausibly suspected of terrorist crimes should not be subject to restrictions—of course they should—but they should also be subject to investigation. It is not enough to say, “We haven’t obtained any evidence so far, therefore we’ll put them in a control order and let the security services look after them.” That is not an appropriate response. If we have not obtained enough evidence so far, we need to keep trying, and in the course of that attempt, of course we can put them on something that is analogous to police bail. Of course, we can put them on curfews, tell them they cannot go to certain places and tell them they cannot meet with certain people. Those are common or garden bail conditions. That is happening up and down the country as we speak, including to people who are not subject to charge, who are on police bail. There is a great misunderstanding about this; it is not per se constitutionally objectionable to restrict people who have not been charged. It happens all the time, but you have to get the process right, so that it is a part of criminal justice, and not just handing people over to be surveilled by the security services on control orders, which does not create—or has not, historically, created—any evidence at all.

Q 96

Paul Goggins: Perhaps I might have a little more on the question that Gerry asked, because that is really based on the final page of the review of counter-terrorism that the Government conducted, which acknowledges that the measures in this Bill, in exceptional circumstances, may not be sufficient to control the risk which an individual poses. It points to some future emergency legislation. I know your view, in relation to extension beyond 14 days pre-charge detention, was, very strongly, that it should be emergency legislation. Do you hold that view in relation to this, or do you think it would be possible to have a power within this Bill that would allow the Secretary of State to impose other conditions—perhaps with a higher threshold test of the balance of probabilities—knowing that, immediately, the court has oversight and could strike out those conditions, if it did not think that they were proportionate?

Lord Macdonald:  My impression has been—I may be told that I am wrong about this—that if you give Ministers a power, sooner or later they are going to use it.
 Hazel Blears (Salford and Eccles) (Lab) indicated dissent.

Lord Macdonald:  I see one former Minister shaking her head, and she knows much more about it than me, but I would prefer it, and I would think it safer, to have this as it is, with a form of emergency legislation, if anyone thinks that will ever be needed. I am slightly sceptical about this. As you will appreciate, there are a number of competing interests and views in this review, and many different views were accommodated and reasonable solutions were arrived at. You have to posit a pretty horrendous catastrophe to go beyond this, as you would to go beyond 14 days. We were talking about scenarios in which there were simultaneous mass casualty attacks in a number of major cities. We can all imagine ghastly things happening, and all things are possible. One of the things that we have to do when we are thinking about legislation is to come to conclusions about what is remotely likely. Personally, I think that these sorts of measures are proportionate and appropriate, so long as they are tied to the criminal justice system, which at the present, they are not.

Q 97

James Brokenshire: Lord Macdonald, you will no doubt be aware of the comments of Lord Carlile. I think that he said in one of his reports that the Crown Prosecution Service is assiduous in pursuing prosecutions, where there is sufficient admissible evidence. Is there anything that stops the DPP, in your words, actually carrying on with the investigations or examining the prosecution possibilities? Because certainly the evidence we have been given thus far is that that is pursued.

Lord Macdonald:  It would not be the DPP; it would be the police, and of course there is nothing. The problem I think we have arrived at—to some extent, there is an attempt in this Bill to deal with it—is as much a cultural one as anything else, which is that when people are on control orders, the view is that they have been dealt with. Somehow they are contained, they have been dealt with, and they are not a priority to the extent that people out there who are not under control orders are. So people in prison and people under control orders are, to an extent, contained. That has led to a situation in which there has been a dearth of serious investigation into these individuals.
This Bill grapples with and acknowledges that—it was clearly acknowledged during the course of the review. The Bill tries to grapple with that by putting some sort of obligation on a chief constable to make a report to the Home Secretary at regular intervals, but why do it that way? Why do it in such a half-hearted way? Why not put the duty to investigate not only at the heart of the Bill, but as a precondition to the sorts of measures being imposed? It seems to me that, if you do that, you are in the best of both worlds. No one can constitutionally object to the measures and you have every impetus in the Bill to encourage investigations, which, in turn, are the only process likely to result in prosecution and then imprisonment.

Q 98

James Brokenshire: I suppose it is a question of whether certain issues arise. I think that the key comment is admissibility of evidence. You know the challenges when a case is brought forward where there is information and intelligence that may not be admissible but that is highly persuasive and points to particular courses of action. In such circumstances, where it may be determined that a prosecution cannot be brought, are you saying that Government should not do anything and that there is nothing they can do, because bail does not seem to apply because there cannot be an ongoing investigation and you have reached the determination that, based on the evidence, you cannot bring a prosecution? Surely that is the crux of the argument that we are getting at.

Lord Macdonald:  If I may say so, I think you are a bit too dismissive of our justice system and what it has achieved.

James Brokenshire: Far from it.

Lord Macdonald:  Let me explain why I say that. Traditionally, the way that a justice system would respond to that would be to continue to investigate the individual. You do not reach a point where you say, “We have investigated him. We haven’t got the evidence. There’s nothing else we can do. We will cease the investigation.” What you do is continue the investigation and, meanwhile, if there are reasonable grounds to suspect, which there plainly would be, you put the individual under some form of restriction. That is what happens conventionally, and I see no reason at all why the situation that you posit could not be dealt with in the same way. An investigation into a crime such as terrorism should not come to an end point. If there are continuing suspicions about that individual, the investigation continues.

James Brokenshire: We certainly respect—

Martin Caton: This is your last question, Minister. Other people want to come in.

Q 99

James Brokenshire: This is my last question, I promise. We clearly respect the fact that everybody is trying hard to bring prosecutions in the first place. I would be interested to hear your thoughts about the case that was brought this morning where Lord Carlile referred to post-acquittal control orders being put in place. What would be your view in those circumstances?

Lord Macdonald:  If you are in a situation in which someone has been acquitted and there are no grounds to suspect that they have been involved in anything other than the act for which they were acquitted, I think that putting them under continuing restrictions is deeply problematic. That is my answer. You may well say that, in those circumstances, the Government have a duty to act, in spite of the fact that they cannot do anything through the justice system, but we will have to disagree philosophically on that. The Government have all sorts of other powers at their disposal. They have agencies and very profound forms of surveillance, which they can exercise in order to keep people of that sort under control, as the Americans do. The Americans do not have any form of control order, and European countries do not have control orders of that sort. The traditional way to deal with the problem that you have identified is surveillance and the gathering of evidence. If someone has been involved in terrorism in the past, it is more than likely, frankly, that they will be caught doing it again.

Q 100

Hazel Blears: I welcome you and the witnesses to the Committee, Mr Caton. I have a few questions for you to explore, particularly around relocation and curfews, but first I want to follow the Minister’s point that you appear to be saying that police bail is a preferable system to administrative restrictions, whether they be control orders or TPIMs. Can you honestly say that you could put somebody on two years’ police bail knowing that you cannot use the intelligence that you have to bring that person into the criminal justice system? Would that not be something of a sham whereby even though you know you cannot use the intelligence that you have, you adopt one set of procedures because they are connected to the criminal justice system and have someone on police bail for two years?

Lord Macdonald:  It depends on the status of the investigation. I would be very suspicious—I was when I was DPP—of anyone who said to me, “We know something from intelligence.” One wants to understand what the quality of that intelligence is and what its character is. Intelligence, in my experience, turns out to be wrong as often as it turns out to be right. People who are professionally involved in intelligence will be honest with you about that, if you catch them on their own. Intelligence is sometimes right; it is sometimes wrong. You can always, with respect, posit extreme examples that put the person who you are in a discussion with into a corner. If you say to me, “We are absolutely certain that someone has committed an offence. We are absolutely certain that we are not going to get any evidence from them through an investigation,” of course, that creates a difficulty for my argument. However, I have never seen a case of that sort, and I did not see a case of that sort in the five years that I was DPP.

Q 101

Hazel Blears: You have made a great play, Lord Macdonald, of the fact that you want a system that encourages ongoing investigation and that galvanises the agencies to keep digging and getting more information. In fact, the evidence that we received this morning from the Director of Pubic Prosecutions said that he did not think there was a great chance of getting evidence after you had made an order or, indeed, after you had put somebody on police bail, because they are then aware of surveillance. I think Deputy Assistant Commissioner Osborne said that he thought it very unlikely that you would be able to gather further evidence in those circumstances. Why would police bail somehow be less of a problem and put the suspect on less notice than either a control order or a TPIM? It seems that you are reaching for this easy answer of police bail, as if it solves all the problems, when we are dealing with things that are not easy to resolve.

Lord Macdonald:  I do not think it is an easy answer because, of course, the investigations that would be conducted would have to be carefully planned, targeted and designed investigations into serious crime, which is what we are talking about. They would have to be carefully designed and it would be hard work.
If you have a system of restrictions like this that is imposed by the police who are under a duty to conduct investigations, you are more likely to get investigations that bear fruit than if these sorts of conditions are, in effect, surveilled by the security services, for whom I have huge admiration but whose role is protective rather than investigative. You would change the culture if you had these sorts of measures coincidental to and part of a police investigation, rather than as part of what I would see as security service warehousing. I am not criticising the security services at all. I worked closely with them when I was DPP, and I have huge respect for them but, on this issue, they are wrong. We are more likely to lock these people up if we move to the sort of system that I am talking about, and that is really at the heart of this.

Q 102

Hazel Blears: We will agree to differ there. In terms of relocation, your views are very clear—you have opposed relocation. We have heard evidence this morning from the DPP, from Lord Carlile and from Deputy Assistant Commissioner Osborne that shows that they regard relocation as probably the single most useful restriction that can be imposed. Of the 12 existing control orders, nine of them have a relocation provision. Of those 12 orders, half a dozen of the people concerned reside in London and are likely to come back to London once those restrictions are removed. They are likely to come back to London by December this year, before the Olympics next year, which is a huge security challenge for the whole country. Why are you so opposed to the issue of relocation, which appears to be an extremely useful tool in terms of surveillance?

Lord Macdonald:  I do not have any problem at all with relocation. I have clients who have relocated as part of their bail conditions. As long as a measure as severe as that is attached to the justice system in the way I have described, I do not have a difficulty with it. The problem with control orders is that they are a form of administrative control that does not follow due process proceedings. That is why I object to their more extreme form. If these measures are part of a bail condition system—a due process criminal justice system—they are perfectly appropriate. People are being subject to relocation up and down the country as part of their bail conditions. For me, this is an issue of principle. I am not saying that we do not need these powers; my difficulty is where they are placed at the moment.

Q 103

Hazel Blears: May I ask one supplementary question? If these issues were part of bail conditions and the situation was that the only intelligence you had was inadmissible in court, do you think that those bail conditions would hold or would they be struck down by the courts as a sham?

Lord Macdonald:  The police make bail conditions of this sort. I am sure that occasionally judicial reviews are brought, but I am not aware of substantial numbers of judicial reviews being brought around bail conditions. The police and the courts have huge discretion to apply conditions to bail, and they do it all the time.

Q 104

Tobias Ellwood: I do not want to put words into your mouth, but it seems that you are suggesting that using bail conditions could replace control orders, or indeed TPIMs. Is that the thrust of what you are saying?

Lord Macdonald:  Yes, I think so.

Q 105

Tobias Ellwood: With that in mind, do you believe that the current conditions that can be imposed under bail circumstances are as powerful as those for control orders, or indeed TPIMs? Relocation has been mentioned, but do you feel that bail conditions are powerful and stern enough to be able to keep track of these individuals?

Lord Macdonald:  Courts may apply any condition to bail that seems reasonable to the court, as long as it is necessary to prevent absconding or the commission of further offences. Those conditions include curfews, relocation or banning from certain areas or colleges. I have not seen anything in the Bill that could not form part of a bail condition.

Q 106

Tobias Ellwood: So you think that the current conditions that can be applied to bail do not need to be enhanced whatsoever to meet the concerns—

Lord Macdonald:  You would have to raise the present bar on granting bail in terrorism cases. At the moment, courts are forbidden from granting bail in such cases, but as long as that bar is raised, the mechanism could be simply achieved, I am quite sure that any court or police officer imposing bail could deal with it. Police officers are presently not allowed to impose bail conditions of attendance at a bail hostel or electronic tagging. I will be corrected if I am wrong, but I think that everything else is at large.

Q 107

Tobias Ellwood: Does that form part of the theme of the review that you have done for the Home Secretary?

Lord Macdonald:  I had a section in my review about the desirability of bringing control orders within the criminal justice system. It did not find favour with the Home Secretary, but it was suggested.

Q 108

Tobias Ellwood: Forgive me, but where is that review now?

Lord Macdonald:  I did a report on the counter-terrorism review, and it was published simultaneously with that. Paragraph 8 of the control orders section of my report, which is on page 10, dealt with restrictions as part of the criminal justice process. I said:
“I have no doubt that were a regime of restrictions against terrorist suspects to be linked to a continuing criminal investigation into their activities, many of the constitutional objections to such a regime would fall away. It is precisely because the present control order system stands apart from criminal due process that it attracts such criticism.”
I made the suggestion, but it was not accepted by the Government.

Tobias Ellwood: I—

Martin Caton: I call Stephen Phillips. I think that you have had enough, Mr Ellwood. There are several more questions to get through.

Q 109

Stephen Phillips: I just wanted to follow up briefly on the suggestion that this could all be dealt with through the bail mechanism, and police bail in particular. The measures associated with either TPIMs or control orders are pretty draconian. Is it not better to have them based on the reasonable belief of the Secretary of State and reviewed by the High Court, rather than simply decided by a custody sergeant in a police station?

Lord Macdonald:  You would need to have some sort of mechanism for them getting there in the first place. You could have a system, for example, where the Home Secretary applied to the High Court to lift the bar on bail in terrorism cases, and if the High Court agreed, the case could be passed to the police for investigation in the way that I have described. There would have to be some kind of gateway mechanism, and the Home Secretary would still have to play a role in it. I agree with you about that, because these are such sensitive investigations. It is because it is precisely likely that the measures that were put in place as part of the bail conditions would be severe that you would want some kind of entry mechanism before they were passed to the police for that sort of process. I am quite sure, however, that something along those lines could be designed quite simply.

Q 110

Stephen Phillips: On another topic related to some of your earlier evidence about relocation, the Bill has within it, as you will have seen, an exclusion measure in schedule 1, which empowers the Secretary of State to restrict individuals from entering specified areas or places. What is to stop the Secretary of State from imposing a restriction that someone subject to a TPIM cannot enter any part of the United Kingdom, save for a particular place?

Lord Macdonald:  I just want to check the wording of that.

Q 111

Stephen Phillips: It is in schedule 1 on page 18 of the Bill, if you have the official copy.

Lord Macdonald:  I am afraid that I do not.

Stephen Phillips: It is paragraph 3 of schedule 1.

Lord Macdonald:  So it is “Travel measure”.

Q 112

Stephen Phillips: I have it as “Exclusion measure”. The Secretary of State could impose a restriction on an individual entering any part of the United Kingdom save for, let us say, a particular town. Would that not be precisely the same as a relocation measure?

Lord Macdonald:  I am sorry to be difficult. You are looking at paragraph 3, “Exclusion measure”, which states:
“The Secretary of State may impose restrictions on the individual entering…a specified area or place, or…a place or area of a specified description.”

Stephen Phillips: Correct.

Lord Macdonald:  That is entering. That is not requiring someone to live in a particular place.

Q 113

Stephen Phillips: No, but what if the restriction that the Secretary of State imposed was that you may not enter any part of the United Kingdom except for Salford or Eccles?

Lord Macdonald:  That would certainly be challenged in the High Court, for all sorts of reasons. The High Court would probably say that that was a bad faith application of the provision and that it went beyond what the provision was intended to achieve.

Q 114

Stephen Phillips: It would involve litigation. But at least on the face of schedule 1, there is something that might—by the back door as it were—reintroduce the relocation.

Lord Macdonald:  I think that the Home Secretary would receive strong legal advice that to make that order would be an abuse of that provision, frankly. That is my opinion.

Q 115

Rebecca Harris: You said that you welcomed the fact that TPIMs appear to allow for more continuing investigation than under the previous regime.

Lord Macdonald:  Yes, they do.

Q 116

Rebecca Harris: I just wanted to find out whether you have evidence of the grounds for believing that the security services genuinely warehouse people whom they could otherwise prosecute, or is this more the theoretical position that you think it should be within the legal system?

Lord Macdonald:  There was a very strong view, which I think was accepted by most people during the counter-terrorism review, that control orders acted as an impediment to prosecution. That was partly because the measures imposed prevented people from meeting, talking and so on with co-conspirators. Normally, in a criminal investigation, you would want to surveille all those sorts of conversations, rather than closing them down, because that is apt to produce evidence for prosecution.
It is partly that, but there are a number of other reasons, some of which I wouldn’t particularly want to go into in public, about how the system works when it is operating. There are a number of reasons why, when people are under control orders, the prospect of prosecution falls away. Of all the people placed on relocation, only one has subsequently been prosecuted. The people placed on relocation are those regarded as the serious threat and those involved in the most serious terrorist activity. It seems to me that the fact that only one of them has subsequently been prosecuted is a failure of public policy.

Q 117

Rebecca Harris: Might not that also tell you that they were on control orders for the reason that they were a risk that needed managing, but could not be brought to prosecution?

Lord Macdonald:  They can be managed for a certain period—control orders cannot last for ever. Sooner or later, the control order is gone and the person is back leading a normal life. Even without the time limit proposed in this Bill, no one had ever argued that anyone could be kept under a control order for 10, 15, 20 or 30 years.
I absolutely accept that if people are on a control order, that is managing a risk—of course it is. It is managing the risk that during the period they are under the control order they would otherwise go and blow themselves up or put a bomb in a hotel lobby. Of course it is managing that risk to an extent—for that limited period—but what it is not doing, it seems to me, is encouraging the possibility that that person could be put in the dock and locked up for 40 years. That is the problem.

Rebecca Harris: May I—

Martin Caton: I am sorry but I am going to move on. We have time for only one more question, really.

Q 118

Robert Buckland: Lord Macdonald, I was very interested by what you said about the DPP having a role in the process before the imposition of a control order or TPIM. I think you said that, in your view, the DPP should issue a certificate prior to the imposition of any alternative measures such as a TPIM or control order. Would that be a certificate of insufficiency of evidence, either under the full code test or the threshold test?

Lord Macdonald:  Under the old system, the DPP was invariably asked at the time the order was going to be applied for whether he thought there was sufficient evidence. Invariably, the position was, “No, otherwise the control order would not have been applied for.” I think that if you are going to have a gateway system to enable measures to be applied to people, and if you are going to tie it to a continuing investigation, that gateway system ought to have some sort of statement from the DPP associated with it to say that there is sufficient evidence to justify an investigation and that an investigation should take place. It could then be passed to the police with the bail measures then imposed. That is a rough sketch of the idea.

Q 119

Robert Buckland: I misunderstood. If it was the other way round, the danger would be that having a certificate of insufficiency of evidence would achieve the sort of mischief that you are worried about: control orders or TPIMs, in effect, resulting in the shutting down of the criminal investigation.

Lord Macdonald:  I regard the insufficiency of evidence not as the end game, but as the challenge to get some.

Q 120

Robert Buckland: Would you agree that an element of flexibility in the system is desirable—in other words, an encouragement of the fact that TPIMs should not be the end of the line for prosecution?

Lord Macdonald:  This Bill is an improvement, in my view, on what went before, not least for the reason that it clearly offers more encouragement for an investigation than the old system. Added to the other improvements that I listed at the outset, that is another one. You are right, and I should have mentioned it.

Martin Caton: I am afraid that that brings us to the end of the time allotted to the Committee to ask questions of these witnesses—my apologies to you, Mr McCullough. On behalf of the Committee, thank you all very much for the evidence you have given us.

Examination of Witnesses

Shami Chakrabarti, Isabella Sankey, Dr Eric Metcalfe and Dr Michael Korzinski gave evidence.

Martin Caton: Welcome to our sitting. Please will each of you introduce yourselves to the Committee?

Isabella Sankey:  My name is Isabella Sankey. I am from Liberty.

Shami Chakrabarti:  I am Shami Chakrabarti, also from Liberty

Dr Metcalfe:  Eric Metcalfe from Justice.

Dr Korzinski:  Dr Michael Korzinski from the Helen Bamber Foundation

Martin Caton: These introductions are wonderful.

Q 121

Julian Huppert: I believe that you were all here for the previous session, so you will have heard a lot of discussion about the idea of moving from a TPIM-control order system to a police bail-type system. I do not know if you have had a chance to look at the amendments that I have tabled, which seem to fit quite well with what Lord Macdonald was saying. I wish that I had spoken to him recently about it. Do you have any response to that idea or those particular amendments?

Shami Chakrabarti:  From our point of view, we really welcomed that argument. It might have been coming from the prosecutorial side of things—from Lord Macdonald, who was obviously an incredibly successful prosecutor in terror cases—but it also chimes very well with our concerns about fundamental rights and freedoms. There are some misunderstandings about this debate, which obviously has been polarised over the years. No one has an objection to putting restrictions on people’s movements because they are considered to be a threat. Restrictions are put on people’s movements. They are put on people’s movements under pre-charge detention—we obviously have great arguments about how long that should be for—and they can also be put on people as part of pre-charge police bail. They can be put on people’s movements as part of a community sentence post conviction or a custodial sentence, and they can even be put on people’s movements when they are released from prison under licence.
The constitutional concern about the control order regime has always been—and I do not need to remind members of the coalition Government because they kept both Houses up all night in 2005—that it sits completely outside the criminal justice system as an indefinite preventative measure. Separating this system institutionally and legally from the criminal justice system makes the difficulty permanent, because you basically decide at the beginning or at some stage of an investigation that we have got some intelligence on a person, but we will never be able to convert it into evidence that we can use—whether for a terror offence, benefit fraud or anything else. By the way, it would be good enough for me if this meant that you could charge the person at some stage, and convict them if they are guilty and put them in prison. With respect, Dr Huppert, you are right and so was Lord Macdonald. If we can find a way to stitch restrictions properly back into the traditional rule of law in this country and the criminal justice system, that would be very welcome for everyone.

Dr Metcalfe:  On behalf of Justice, I agree with what Shami has just said. I think an important point to bear in mind is that the control order regime was in fact inspired by the immigration bail conditions that were imposed on a suspect named M in 2004 by the Special Immigration Appeals Commission precisely because he had mental health difficulties with being in Belmarsh on an indefinite basis. Mr Justice Collins imposed a series of bail restrictions, and in the Belmarsh judgment by the House of Lords, Lord Bingham said that if bail restrictions can be imposed on a person, it is a better way of dealing with them than locking them up in prison indefinitely. I also agree with Shami that what is primarily offensive about the control order regime is not the idea of imposing restrictions on a person whom you suspect of being involved in serious terrorist activity, but the way it sidesteps the safeguards of our criminal justice system and the foundation principles of the criminal justice system.

Dr Korzinski:  I come at this from a slightly different perspective. I am not an expert on law or policy. What I am an expert on is the impact that the control order regime has had on the people who have been subjected to it. Since 2005, I have been working with individuals whom, I guess, you could describe as the subjects of the current conflict, if you want to put it in those terms. These are men who have returned from Guantanamo Bay, people who have been subjected to control orders or people who are at risk of being removed to countries where they may be detained and tortured. The way in which I come into it is that often I am instructed by solicitors to look at what happens to the people. What I am concerned about in all this—there are people on the panel who are far more expert than me about the legal issues—is the absence of any sort of safeguards with respect to the impact on the mental health of the individuals who are subjected to these regimes. I can say quite unequivocally that it has been catastrophic in all the cases that I have worked on.
I am really happy to be here, because I have been trying to have a conversation with people about that since 2005, when I was first referred cases. Whenever one puts forward the issue of mental health—whether in relation to moving, relocating, or the separation from family and loved ones—it is always outweighed by security concerns. That is the area that I feel competent to talk to you about today, so if people have questions in that particular area, I will be happy to share my views.

Q 122

Julian Huppert: Thank you all for your answers.
I want to come back to the issue of police bail. Would you be comfortable with the idea that one could run a system of police bail that provided at least as good security for the public, as well as at least as good a chance of prosecution, as a TPIM or a control order?

Shami Chakrabarti:  I am confident that you could have a system that broadly replicates the TPIM in terms of the restrictions. It is not ideal. I have to agree with Ms Blears that none of this is easy, under any regime. The ideal, in terms of keeping the public safe, is obviously arrest followed by a limited period of pre-charge detention, and then charge and so on—do not pass go; do not collect £500—so you are in custody all the way through and there is evidence and you are convicted. Short of that, however, ideally you would be putting someone under surveillance and investigating them without tipping them off at all—with no control order and no bail condition—for as long as you could achieve that with intensive investigation and surveillance. However, if there comes a moment when the risk to the public outweighs the benefit in an ongoing investigation that does not tip people off, it is better, I think—because you are more likely to get evidence in due course and to have a charge and a prosecution—to go with a TPIM turned into a bail condition than with this warehousing approach that broadly replicates the control order scheme.
To be reflective about the past 10 years—I wear specs now and my hair is a little greyer than when I started complaining about exceptional measures—and to be fair to the previous Government, control orders were brought in relatively quickly after the Belmarsh debacle, and since control orders were introduced in 2005, we have seen some new ancillary criminal offences, such as acts preparatory to terrorism and attending terror training camps. Some other criminal justice-type measures were brought in by the previous Government that I think would sit rather neatly with the criminal justice approach.
The big philosophical question in all this over the past decade, and it continues now, has been whether everything changed so much on 9/11 that we have to deal with terrorism outside the normal rule of law—that this is war and not law any more—or whether we need to modify our criminal justice system so that it is robust enough to do what Lord Macdonald did so well and that we can do even better. Obviously, I advocate the second approach, and I hope that now, as we come to the 10th anniversary of the twin towers atrocity, all parties might agree on that ambition.

Q 123

Hazel Blears: I want to follow up the idea that police bail is somehow the answer to all our philosophical difficulties and practical problems, because I genuinely do not feel that it is. I would welcome your view on that, and I am grateful for your acknowledgement that nobody really wants to be in this territory, but what else can we do?
I do not understand why you say that it is more likely that evidence will be gained to sustain a prosecution when somebody is on police bail, rather than on a control order or a TPIM. The evidence that we heard this morning from the Director of Public Prosecutions and Deputy Assistant Commissioner Osborne was that it is most unlikely that, once somebody is tipped off that they are under surveillance, they will engage in activities that will give you evidence. I do not understand the difference, that because you are on police bail you are somehow more likely to be careless about how you use your computer, whom you contact and associate with than you would be if you were on a TPIM. Why do you think that is the case?

Shami Chakrabarti:  I completely see your point that it is not going to happen by magic. There is nothing magic about it. If we call it police bail, and we do not call it a control order any more, suddenly we are going to find evidence. Not at all—the crucial difference is that you have now institutionally tied the police and prosecutors back into the system.
I have had the privilege, and it may not have been such a pleasure for the Home Secretaries concerned, to discuss these measures over the years one-to-one with various Home Secretaries, who have been very generous with their time. I remember a meeting with a Labour Home Secretary before the last election that was particularly important to me and my colleagues. That Home Secretary said to me, I believe with a genuinely heavy heart, “I am afraid that we haven’t managed it. I don’t think we’re going to be able to do away with control orders. There are still a handful of cases that are very difficult, and I am really concerned about the risk. We have a handful of files that are very sensitive and very difficult, so I don’t think we’re able to do away with control orders.”
I am grateful for that Home Secretary’s time. I remember turning both to the Home Secretary and to the Home Office officials who were sitting in the room—they were neither police officers, nor prosecutors—and I said, “I appreciate what the Home Secretary has said, but when you reviewed these files did you take the advice of police and prosecutors to see whether any of this intelligence can now be converted into evidence?” I am sorry to say this, but there were red faces in that room. I was told by the officials concerned that, no, the files were not being reviewed by prosecutors because, of course, intelligence is different from evidence. I said, “Well, of course I know intelligence is different from evidence, but how are we ever going to look at ways of converting intelligence into evidence and ways of following up intelligence leads and turning them into evidence?” That is what police and prosecutors do and, with respect, it is not the job of the security services and bureaucrats alone.

Q 124

Hazel Blears: With the greatest respect, I do not think you have answered my question. Why does making it police bail make it more likely that people will make mistakes and give us evidence?

Shami Chakrabarti:  Because you tie the police and the prosecutors into the system. At the moment, they are excluded. It is a completely separate system.

Q 125

Hazel Blears: I do not think they are excluded. The current legislation provides for them to be consulted.

Dr Metcalfe:  They are not in charge of the process, which is the fundamental point.

Q 126

Hazel Blears: But the legislation provides that everybody seeks prosecution where possible. That ties in all the agencies.

Dr Metcalfe:  With respect, the legislation provides only a slightly enhanced requirement on chief constables to report back to the Home Secretary. I agree with Keir Starmer that, on the odds, it is relatively unlikely that you will gain any more evidence from being on police bail. The fundamental point is that it is an answer to a different question, which is about harnessing this thing to the criminal justice system. As much as I do not think that police bail will gather much more evidence than control orders, you are likely to marginally improve the system by having the police in charge of the process, because they are investigators.

Q 127

Hazel Blears: If you were to have police bail for a period of up to two years, based on intelligence that is not admissible as evidence, do you not feel that there would be a similar level of judicial activism in striking down the conditions of police bail, and perhaps rightly so, as there would be for striking down the provisions of control orders or TPIMs?

Shami Chakrabarti:  I have two points to make in response to that very real question.
As I understand it, there is a two-year limit on the new TPIMs proposal, so if we do not turn this into a proper criminal investigation with police officers and prosecutors at the helm, what will happen after two years? Will we just let people wander off into the sunset, or will we suddenly concoct a way of issuing a new control order, and there still is not a criminal investigator in charge of the process?
The second answer is that, yes, if the system were abused, of course the courts would say, “Are you really investigating; why is it taking so long?” If there were a genuine good-faith investigation, as no doubt happens in other cases—police bail is the norm, by the way, in relation to other cases across the book, such as organised fraud, serious crime, sex offences and murder, and those are not all easy cases—the criminal courts and the High Court, if necessary, would give a certain latitude to police and prosecutors acting in good faith and demonstrating why a complex investigation was taking time, perhaps even without the need for secret intelligence, but having to co-operate with six different countries to convert our intelligence into hard evidence, and to de-encrypt files. That is another process that is easier, thanks to other measures that your Government brought in, which now need to be reconsidered in the light of attempting to move from preventive measures to the criminal justice aspiration that you say you share.

Dr Metcalfe:  To supplement Shami’s point, it is worth noting that in terrorism cases when a person is charged with a terrorism offence there is often a considerable delay in the disclosure of evidence in relation to the charge before they can challenge it. They will not be on bail; they will be locked up, most likely in Belmarsh, where people may spend up to six months before they have sight of the evidence. We are not talking about a radically dissimilar system of police powers between what goes on at the moment and when a person is actually charged with a terrorism offence.

Q 128

Stephen Phillips: Forgive me, I am genuinely having trouble understanding Liberty’s argument. You are suggesting that the sort of restrictive measures in control orders or the Bill should be something on which a custody sergeant decides, as opposed to what is proposed in the Bill, which is that the Secretary of State must have a reasonable belief that an individual is involved in terrorism, which is then subject to extensive review by the High Court. Is that not much more satisfactory than having it decided by a custody sergeant in a police station anywhere in the country?

Shami Chakrabarti:  I think you are right, by the way, that there would be a very good argument for lifting this above the level of custody sergeant. I think I heard Lord Macdonald say—you will correct me if I am wrong—that because you would not necessarily want bail to be the norm in terror cases, and you would want pre-charge detention in most instances, there could be a residual role for the Home Secretary in deciding whether to lift the bar. The crucial safeguard—this is what Liberty’s argument is about—are the justifications for bail restrictions in the Bail Act 1976 that apply in all other cases because they ensure the purpose of the restriction, which is not indefinite warehousing because we have given up on criminal investigations. The purpose is in the Bail Act. Preventing someone from interfering with witnesses, safeguarding evidence, and preventing someone from absconding from bail are all designed to make sure that this is about a real and ongoing criminal investigation, and not an indefinite preventive measure.

Dr Metcalfe:  I think, with respect, it will never be a custody sergeant. If police bail is offered in a serious organised crime investigation, for example, which has been managed over 18 months or two years, it will not fall to a custody sergeant to make the decision to grant police bail. Such decisions will always be made in consultation with, or at the direction of, senior officers, even a chief constable, prosecutors and so on. I do not think we are comparing like with like. The real analogy would be what a person who is facing a two-year investigation by police in a drug importation case gets. It will not be the custody sergeant in those cases.

Q 129

Stephen Phillips: But all those people, as I am sure you would agree, Dr Metcalfe, are below the level of the Secretary of State, and the subsequent judicial oversight directed to their decisions is below that of the High Court.

Dr Metcalfe:  First, the Secretary of State does not act alone, but acts on the advice of people, and I imagine that many of the people taking the decision in the chain of custody argument would be many of the people who would, in a control order case, be required to advise the Home Secretary on the feasibility of a control order being obtained.

Q 130

Tobias Ellwood: May I turn to the human rights and civil liberties issues in comparing TPIMs with control orders? The proposal is that there will be a mandatory High Court review of TPIM notices. Is that sufficient to guarantee that the new regime will be more compatible with human rights and civil liberties than the old control orders?

Isabella Sankey:  No, it is not. My reading of the Bill is that it is incredibly similar. One point to bear in mind, and it relates to the last question, is that the type of review that the High Court will carry out is extremely limited. It will review whether the Home Secretary is right in reasonably believing, based on the information before her, that somebody poses a risk. That can be entirely subjective, it can be based on wrong information and it can be based on information that might have been obtained overseas through methods that we would not condone in the UK, so the type of review that will be exercised by the High Court will be extremely limited.

Dr Korzinski:  The phrase, “compatible with human rights and civil liberties”, is interesting. What is absent in the review is any understanding of the impact of these regimes—TPIMs, control orders—on the mental health and well-being of the individuals and families concerned. That is a really serious absence. As important as these discussions for the legal side of this issue, for the seven years in which I have worked on this issue it has been impossible to get people to think about the impact on the mental health of the individuals involved. As important as the legal principles are, there are other principles that have to do with the individual’s experience of the regime and in turn with how that experience is translated or communicated to the communities that are often the most sensitive about these issues.
I was talking to a controlee this morning, and I told him that I was going to give evidence to the Committee. He said, “I’d really like to say something about my experience.” I said, “Well, can you write it down?” Then I said to him, “Could you fax it to me?” He said, “What are you trying to get me to do? Breach? I can’t fax.” So we had this conversation and he wrote something quite compelling. It is probably not appropriate to share it, but I thought that it was profound in terms of understanding what is going on with these individuals.
Believe me, if that factor is not taken into consideration you are storing up problems, because all the controlees I have worked with and who have come off control orders have major mental health problems. You see breakdowns within their families, and children who are completely dysfunctional in school and who need support. With one guy, the child was rubbing his faeces on the wall because of “what happened to daddy”. There is something around the need to get to grips with that part of it that I wish I could engage people in a conversation about, because believe me— whatever policies you come up with, the long-term issue is that you have to weigh those policies up against the impact on these individuals and what the long-term consequences are for them.
That is what I am working on at the moment. I have been in a privileged position; I am only an expert because I have been working with the controlees for as long as I have. I have had the experience of working in depth with people who are considered the most at risk—the people who pose the highest threat—and to get somebody from, let us say, some part of the country to our foundation to do an assessment in the old days was like getting blood from a stone. If that person required treatment, they were told they could go to the local GP. These guys will not go to the local GP, so we need to engage with them and have conversations with them, and I think that we need to talk to them. In my view, I think that that is what is missing in all of this.
There are serious issues such as national security, risk and terrorism, but with these phrases—“extremism”, “radicalisation” and so on—you need to drill it down into what these words are. In my view, by the time that we start formulating these Bills it is too late, because the issues are really beginning in the families and the communities. They are beginning with young people. We are not talking about outsiders; we are talking about people who, for the most part, are English or people who were refugees at one point but who are now British citizens. So by the time that we create these laws, in my view it is too late. This has to be a holistic process.

Martin Caton: I am sorry to cut across you, Dr Korzinski, but we have limited time.

Q 131

Shabana Mahmood: Control orders were subject to annual renewal by Parliament, and TPIMs, if the Bill is passed, would become a permanent feature of the legislative landscape. Do you think that annual review and renewal by Parliament should have been retained in the Bill?

Isabella Sankey:  Absolutely. We think that, at the very minimum, a sunset clause should be included in the Bill. One reason that a sunset clause was originally introduced was because the control orders legislation was drafted so quickly, in response to the Belmarsh judgment. At the time in Parliament—Shami mentioned the long nights that peers in the House of Lords stayed up to resist the legislation, particularly on coalition Benches—there was a feeling that the legislation was unattractive, that it was being done with a heavy heart, that it was intended to be exceptional, and that it should be temporary in nature, in the same the way that legislation in the ’70s and ’80s to deal with the troubles in Northern Ireland was temporary, in recognition of the exceptional circumstances. At the very least, for Liberty, including a sunset clause in the Bill would be very welcome.

Shami Chakrabarti:  After all these years, it is a horrible thing to have to say that if TPIMs are not to be brought into the criminal justice system, as Dr Huppert and Lord Macdonald appear to be suggesting, and if we will not get back, with reflection, to the normal rule of law in this country and we are going to go in for exceptionalism, it should not be permanent exceptionalism. If it comes to that, it would—I choke on these words—be better to keep control order legislation, subject to annual renewal, than to turn this exceptionalism into the normal law of the land in England and Wales.

Dr Metcalfe:  Justice’s preference is to have neither TPIMs nor control orders, but I agree with Shami’s point that it is better to have a bad system renewed annually than to have a slightly less worse system that is permanent. Parliament has generally missed its opportunity with annual renewal to do much about the control order scheme, but you should not deprive yourself of that opportunity. We see control orders and TPIMs as essentially being the same scheme, and in reference to the earlier question, they are almost identical in terms of judicial review. The sole difference seems to be raising it from reasonable suspicion to reasonable belief, but you should not make the TPIMs scheme or control orders into a permanent feature of our legislation.

Q 132

Eric Ollerenshaw: I want to check up on something that Dr Metcalfe referred to, which is the slightly more prominent role for the police under TPIMs. You dismissed that.

Dr Metcalfe:  I am sorry that I did. I do not mean to suggest that the police have not been diligent in making their reports under control order legislation but, as Lord Macdonald said in his review, it had virtually no effect. To cite him chapter and verse, he described the scrutiny provided by the process as “frankly inadequate”. I do not think that putting an additional duty on chief constables to report back annually to the Home Secretary will greatly increase the quality of that process.

Q 133

Eric Ollerenshaw: Do you think that it is slightly better or worse than the old system, or is it irrelevant?

Dr Metcalfe:  I think that it is better for them to report annually than not, but I cannot describe it as a great improvement.

Q 134

Eric Ollerenshaw: Therefore, do you think that there is a greater chance under this system, rather than control orders, to get people to trial eventually and get some investigation?

Dr Metcalfe:  The difference made by clauses 10 and 11 will be marginal at best.

Q 135

Eric Ollerenshaw: Marginally better than control orders.

Dr Metcalfe:  Only marginally.

Q 136

Rebecca Harris: Under condition A—the first condition for imposing a TPIMs order for the Home Secretary—we have moved from reasonable suspicion required under control orders to asking the Home Secretary to have a reasonable belief. We were told earlier this morning that that was a considerable improvement. What is the panel’s view?

Isabella Sankey:  It is a marginal difference and perhaps only semantic. It is nowhere near the standard of proof that you have in civil cases which is, on the balance of probabilities, much further away than “beyond reasonable doubt”, which you have if you convict somebody in the criminal courts. The punishments can be very similar to community sentences, but you are not anywhere near that standard of proof, so I do not think that it makes much difference.

Shami Chakrabarti:  And it is not proof; it is all based on secret intelligence. I am prepared to concede here and now that the Home Secretary has “reasonable belief” rather than “reasonable suspicion” when she has seen the secret intelligence and passes a control order, but the point is that it is unchallenged. It is secret. The suspect and his lawyers are not able to probe it, so you can use all this legal language such as “reasonable belief” and whatever, but this is not a legal system. It is an administrative secret system. You can have all tests you want, but they will not mean anything, because you do not have a charge and an adversarial fair trial to follow.

Dr Metcalfe:  The president of the Special Immigration Appeals Commission said in 2003 that the standard of reasonable suspicion was not an exacting standard for the Secretary of State to meet. The standard of reasonable belief, which is already in place for the asset-freezing legislation that Parliament passed last year, is really only slightly more enhanced than reasonable suspicion. It is the kind of distinction that you would teach to law students in an advanced public law class. It is extremely difficult to explain the gradations otherwise, and it is certainly far below the standard of proof that would apply in an ordinary civil case about a road traffic dispute, for example.

Q 137

Rebecca Harris: Is it the case that reasonable belief is actually a higher standard of proof than would be required under the Bail Act 1976?

Isabella Sankey:  Under that Act, the police should have reasonable suspicion to make an arrest.

Shami Chakrabarti:  But under that Act, you are heading for a charge—that is the point. You get your due process and, to take up Dr Korzinski’s point, you get to the end of this Kafkaesque process down the road. It may be a long process, and you could end up being acquitted, having been banged up or under restrictions for years, but at least you can stand outside the Old Bailey saying, “Justice has been done and I have been vindicated”. The problem with these administrative, shadowy, quasi-judicial systems is that they potentially go on for ever and you never know why.

Isabella Sankey:  One big safeguard in the bail conditions proposal would be that a court, which would not necessarily have to be a magistrates court, but could be the High Court, could review the conditions if they were challenged. Ultimately, if they went on for three or four years, it is likely that there would be a finding of abuse of process, whereas under this scheme, although new evidence would be required after two years—[Interruption.]

Martin Caton: I am afraid that the Division bell is ringing, and has brought the evidence session to an end—I apologise to our witnesses. Thank you for the evidence you have given. I call on the Government Whip to move the motion to adjourn.

Ordered, That further consideration be now adjourned. —(Mr Newmark.)

Adjourned till Thursday 23 June at Nine o’clock.